A.M.C v. N.P.A (1987)

[1987] 1 .
A.M.C. v. N.P.A.
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ALUMINIUM MANUFACTURING COMPANY (NIGERIA) LTD.

V.

NIGERIAN PORTS AUTHORITY

SUPREME COURT OF NIGERIA

SC.114/1985

ANDREWS OTUTU OBASEKI, J.S.C. (Presided and Read the Lead Judgment)

MUHAMMADU LAWAL UWAIS, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C.

FRIDAY, 27TH FEBRUARY, 1987

ADMIRALTY – Claim for damages for short delivery of goods by bailor – Goods already off-loaded from ship and delivered to bailor before loss occurred – Whether admiralty matter.

ADMIRALTY – History of.

ADMIRALTY – Jurisdiction – Scope of – Federal High Court – Administration of Justice Act, 1956, S. 1 (1), (g) and (h).

BAILMENT – Definition and instances of.

CONSTITUTIONAL LAW – Allegation of statutory infringement of Constitutional provision – Need to state Section of Constitution.

FEDERAL HIGH COURT – Lack of jurisdiction – Proper order – S.22(2) Federal High Court Act.

INTERPRETATION OF STATUTES – Administration of Justice Act, 1956 (England) – S. 1(1)(g) and (h).

JURISDICTION – Admiralty – Scope of.

JURISDICTION – Federal High Court – Lack of jurisdiction – Proper Order – S. 22(2) Federal High Court Act.

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PRACTICE AND PROCEDURE – Federal High Court – applicability of State High Court Rules.

Issues:

1.
Whether the claim in this action falls within the admiralty jurisdiction of the Federal High Court.

2.
If the Federal High Court had no jurisdiction to entertain the suit, should it have transferred the suit to the State High Court or struck out the suit?

Facts:

The appellant had ordered aluminium sheets from a Company in Amsterdam. The aluminium sheets were shipped aboard M.V. River Aboine which arrived at Apapa in Lagos and the aluminium sheets were off- loaded into the respondent’s custody. However, 47 packages out of the consignment were short delivered to the appellant by the respondent.

Appellant then instituted the present action against the respondent for special and general damages for “breach of a Contract of bailment and or breach of duty as a bailee in the custody of 47 packages of aluminium sheets delivered to the defendant ex M. V. River Aboine.”

The action was instituted at the Federal High Court, Lagos.

The defendant raised a preliminary objection that the Federal High Court had no jurisdiction to entertain the action in that it did not fall within the Admiralty jurisdiction of the court. The trial Judge upheld the objection. It was further held that the claim was for breach of contract of bailment. The trial Judge then proceeded to invoke the provisions of section 22(2) of the Federal High Court Act 1973 and transferred the case to the High Court of Lagos State for hearing and determination. The plaintiff appealed to the Court of Appeal. The Court of Appeal confirmed the judgment of the Federal High Court that the court had no jurisdiction but held that the proper order was one striking out the suit. The suit was then struck out. Being dissatisfied plaintiff has further appealed to the Supreme Court.

Held (Unanimously dismissing the appeal in part):

1.
Once a matter comes partly within the jurisdiction of the Federal High Court and partly within the jurisdiction of the State High Court, there is nothing to oust the jurisdiction of the Federal High Court. The Federal High Court is entitled to assume jurisdiction in the matter. The State High Court can also assume jurisdiction in the matter.

2.
The limit of the admiralty jurisdiction of the Federal High Court is as prescribed in the Administration of Justice Act 1956 of England. [American International Insurance Coy. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC 81 considered.]

3.
It was not the Administration of Justice Act 1956 of England that conferred Admiralty Jurisdiction on the Federal High Court. It was the Federal High Court Act 1973 by its section 7(l)(d).

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4.
The Admiralty Jurisdiction of the High Court includes jurisdiction to hear and determine any claim for loss of or damage to goods carried in a ship and any claim arising out of any agreement relating to the carriage of goods in a ship or the use or hire of a ship [Administration of Justice Act 1956 section l(l)(g) and (h) considered].

5.
The jurisdiction prescribed in section 1(1) (h) of the Administration of Justice Act 1956 is wide enough to cover claims in tort arising out of any agreement relating to carriage of goods in a ship.

6.
In interpreting the provisions of section l(l)(h) of the Administration of Justice Act 1956, the words must be given their broad and ordinary meanings.

7.
Any claim which arises from acts or omissions of third parties after the agreement (relating to the carriage of goods in a ship or the use or hire of a ship) has been executed or terminated does not come within the admiralty jurisdiction in section 1(1) (h) of the Administration of Justice Act 1956.

8.
Per OBASEKI, J.S.C ..

“It will amount to ridiculous interpretation to say that because the goods had been carried in a ship any claim for damage or loss occurring after the completion of the journey by sea to Apapa occurring anywhere on land falls within the paragraph. (S. l(l)h). In my view, the facts pleaded in the statement of claim cannot bring the claim within the provision of paragraph (g) or (h) and therefore, I agree with the decision of the court below that the claim is not within the Admiralty or other Civil jurisdiction of the Federal High Court. The claim is totally devoid of any maritime colouring and founded on a simple contract of bailment and negligence. This is more so as the transaction which gave rise to the claim is in the nature of a bailment.”

9.
Per UWAIS, J.S.C.

“In the whole of section 1(1) of the 1956 Act (Administration of Justice Act 1956), the expression “arising out or” appears only in paragraphs(h),(q) and (r). It does not appear in paragraph (g) relied upon by counsel. Therefore the words in the paragraph, viz “any claim for loss of or damage to goods carried in a ship” must be given their ordinary and natural meaning. In that respect the goods concerned in a claim in the admiralty court must have been lost when they were being carried in a ship as cargo and not lost after they have been unloaded from the ship. It follows, in this case, that the packages delivered at the warehouse of the respondent were not goods being carried in a ship when they got lost. Any claim by the appellant against

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the respondent for the loss of the packages cannot, in my opinion, be brought within the admiralty jurisdiction of the Federal High Court.

10.
Per OPUTA, J.S.C.

“… it is apparent that the situs, the locus in quo for the assumption of Admiralty jurisdiction should normally be the high seas. Lord Esher, M.R. called it the locality. That something happened on the high seas (irrespective of any statute) is prima facie, other things being equal a necessary condition for the assumption of Admiralty jurisdiction. In the case now on appeal, the loss did not take place “on the high seas.” The ship M. V. “River Aboine” had docked at the Apapa port and the goods had been fully discharged into the warehouse of the defendant/respondent. It was from that warehouse that 47 packages were lost. Thus the “locality” (the high seas) principle propounded by Lord Esher, M.R. in Queen v. City of London Court supra does not extend to this case.”

11.
A bailment is a delivery of goods on condition that the recipient shall ultimately restore them to the bailor. They may thus be hired or lent or pledged or, as in this case, deposited for safe custody.

12.
The power of transfer granted by section 22(2) of the Federal High Court Act continues to reside in the Federal High Court. This is so notwithstanding sections 231(1) and 233 of the Constitution.

13.
Section 231(1) of the 1979 Constitution conferred all the powers of a State High Court on the Federal High Court for the purpose of exercising any jurisdiction conferred upon it by the Constitution. Since the Federal High Court which dealt with this matter in the first instance exercises its jurisdiction in Lagos State, the High Court of Lagos State (Civil Procedure) Rules are applicable.

14.
The practice and procedure of the High Court of a State is regulated by section 239 of the 1979 Constitution.

15.
Although Order 22 rule 3 of the High Court of Lagos State (Civil Procedure) Rules (which are applicable in this case) empowers the Court to dismiss an action after upholding a plea to the jurisdiction of the court, however the express provision of section 230(2) of the Constitution supersedes and nullifies the provision of Order 22 rule (3) of Lagos State (Civil Procedure) Rules in relation to the question of transfer after upholding a plea to the jurisdiction of the court. Since the Federal Revenue Court had power under section 22 (2) of Federal Revenue Court Decree to transfer a matter in respect of which it had no jurisdiction to a State High Court, the Federal High Court, which is the Federal Revenue Court under a new name, continues to have the power to transfer.

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The power of the Federal High Court to transfer such a suit is saved by section 230(2) of the Constitution.

16.
On a proper construction of section 22(2) of the Federal High Court Act, 1973, the following facts appear in bold relief:

a.
That a case was in fact improperly filed in the Federal High Court.

b.
That accordingly the Federal High Court has no jurisdiction to try that case.

c.
That the State High Court should have been the forum competens.

d.
That notwithstanding such radical error in filing the case in the wrong court yet the case shall not be struck out on that ground.

e.
That instead of striking out the case the Judge of the Federal High Court before whom the case is brought (or improperly brought) shall have the power and legal authority and judicial competence to transfer that case to the appropriate High Court.

17.
Where the argument is that a section of a Law is inconsistent with any section of the 1979 Constitution and thereby void for such inconsistency, the exact section of the Constitution infringed should be mentioned.

Nigerian Cases Referred to in the Judgment:

Akinsanya v. UBA Ltd. (1986) 4 . (Pt. 35) 273

American International Insurance Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC 81

Bronik Motors Ltd. v. A.C.B. Ltd. (1983) 6 SC 158

China Ocean Shipping Co. Ltd. v. Allied Trading Co. CA/L/36/84 of 10/12/84 unreported

Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) 3 SC 59

International Enterprises Nigeria Ltd. v. Transaltic Nig. (Nig.) suit No. FHC/L/24/84 unreported

Mokelu v. Federal Commissioner for Works and Housing (1976) NMLR 329

Savannah Bank of Nigeria Ltd. v. Pan Atlantic (1987) 1 . (Pt. 49) 212

Uthman v. Katagum FCAL/87/83 decided on 16/6/83 (1985) 6 NCLR 138

Foreign Cases Referred to in the Judgment:

Antonisis P. Lemons (1985) 1 AC 711

Eschershain, (1974) 3 All ER 307

Gatoil Case (1985) AC 255

Jade (1976) 1 All ER 920

Queen v. Judge of City of London Court (1892) 1 QBD 273

R. v. City of London Court Judge and Payne (1892) 1 QB 273

St. Elefterio (1957) P. 179; (1957) 2 All ER 374 (1957) 1 Lloyd Rep. 283

Sennar (1981) 1 Lloyds Rep. 295

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Nigerian Statutes Referred to in the Judgment:

Carriage of Goods by Sea Act, Cap. 29 of 1958, S. 2

Constitution (Suspension and Modification) Decree No. 1 of 1966, Ss. 3(1) (4)

Constitution (Suspension and Modification) Decree No. 27 of 1967, Ss. .3(1)

Constitution of the Federal Republic of Nigeria, 1979, Ss. 230(1) & (2), 231(1) & (2), 233, 236(1), 236(10), 239, 274(4)(b), 275(1), 277

Federal High Court Act, No. 13 of 1973 (Formerly Revenue Court) Decree 1973, Ss. 7(l)(d), 8(1), 22(2), (3) & (4), 431(1) 4

High Court of Lagos Act, Cap. 80 (Revised Laws of the Federation of Nigeria and Lagos 1958 as amended) S. 10

Foreign Statutes Referred to in the Judgment:

Administration of Justice Act 1956 of England Ss. l(1)(a)-(s), 7(1)(g) & (h)

Administration of Justice Act of 1981 of England, S. 20(2)(h)

Admiralty Court Act, 1840 of England.

Supreme Court of Judicature Act, 1873 of England

Book Referred to in the Judgment:

Halsburys Laws of England Vol.l Para. 301 page 208

History of the Case:

Supreme Court:

Names of Justices that sat on the Appeal: Andrews Otutu Obaseki, J.S.C. (Presided and Read the lead Judgment); Muhammadu Lawal Uwais, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.; Saidu Kawu, J.S.C.; Chukwudifu Akunne Oputa, J.S.C.

Appeal No.: SC.114/1985

Date of Judgment: Friday, 27th February 1987

Names of Counsel: L.N. Mbanefo, Esq. – for Appellant

Chief O. Jibowu – for Respondent

Court of Appeal:

Division of the Court of Appeal to which the Appeal was brought: Court of Appeal, Lagos

Names of Justices that sat on the Appeal: Adenekan Ademola, J.C.A. (Presided and Read the lead Judgment); Idris Legbo Kutigi, J.C.A.

Appeal No.: CA/L/7/85

Date of Judgment: 18th February 1985

Names of Counsel: Mr. L.N. Mbanefo – for Appellant

Mr. Akpuduro – for Respondent

High Court:

Name of High Court: Federal High Court, Lagos

Name of Judge: Chief F.O. Kachikwu, J.

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Names of Counsel: Mr. L.N. – Mbanefo -for the Plaintiff

Mr. Jibowu – for the Defendant

OBASEKI, J.S.C. (Delivering the Lead Judgment): The question of the limits of the Admiralty Jurisdiction of the Federal High Court as provided by the Federal High Court Act (formerly Federal Revenue Court Decree) 1973 has arisen in only a few cases that have come before this court on appeal. It has only been incidental to the real question of whether a claim filed before the Federal High Court comes or does not come within the jurisdiction of that court. That appears to me to be the position in this case and the main question for determination by this court is this:

“Does the claim of the appellant come within the Admiralty Jurisdiction of the Federal High Court?”

The Federal High Court (Kachikwu, J.) answered this question in the negative and transferred the suit to the Lagos State High Court in pursuance of the powers vested in it by the Federal High Court Act section 22(2).

The Court of Appeal also answered the question in the negative when the matter was taken up there on appeal by the plaintiff/appellant. The Court of Appeal however set aside the order transferring the suit to the Lagos State High Court and substituted it with an order striking out the suit. Still dissatisfied, the plaintiff/appellant has now raised the question before the Supreme Court in this appeal.

The claim before the Federal High Court was a simple claim of N198,872.99 general and special damages with interest at the rate of 10% per annum for “breach of a contract of bailment and or breach of duty as a bailee in the custody of 47 packages of aluminium sheets delivered to the defendant ex. M.V. River Aboine.” More particularly, the particulars of claim endorsed on the writ of summons read:

C.I.F. value of 47 packages of aluminium sheets N178,872.99 General damages N20,000; And the plaintiff claims N198,872.99 with interest at 10% per annum and costs.”

The pith of the matter is that 47 packages of aluminium sheets were lost while they were in the custody of the defendant.

This is brought out clearly by the facts pleaded by the plaintiff in paragraphs 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 which read:

“3.
By a Bill of Lading No. 10 dated Amsterdam 4th May, 1981 and issued by Elder Dempster Lines Ltd., it was certified that 78 packages of wooden plates were consigned to the plaintiff at Apapa on M.V. River Aboine.

4.
On or about the 18th day of May, 1981, the said M.V. “River Aboine” arrived at Apapa bearing the aforesaid packages of wooden plates.

5.
By an Importers Tally Sheet No. B0753-00521 dated 31/5/81, it was certified by the defendant that 78 wooden plates of aluminium sheets were off-loaded from the said M.V. River Aboine into the defendant’s custody.

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6.
By an ‘Import Entry For Home Use’ dated 21st day of May, 1981, it was certified by the Board of customs and Excise that a duty of N24,090.67 was paid on 78 packages aluminium sheets ex M.V. Aboine the value of which consignment is N229,434.91.

By a letter addressed to the defendant dated June 4,1981, Messrs Mid Maritime Services Ltd. the plaintiff’s clearing agents, notified the defendant that 47 packages out of the aforementioned consignment were short delivered.

8.
By a letter dated the 10th September, 1981, the defendant informed the plaintiff that investigation revealed that 78 packages were manifested and all recorded as landed into defendant’s custody. However, only 31 packages were traced and delivered to the plaintiff. Port police had been requested to investigate on the loss of 47 packages.

9.
By a further letter to the plaintiff dated the 15th October 1981, the defendant stated as follows:

‘Further to my letter dated 10/9/81, investigation conducted to locate the 47 plates has not been successful. There is no record of the 47 plates being delivered and since they cannot be located despite series of physical searches, it should be assumed that they were illegally removed from this quay.’

11.
The plaintiff avers that the defendant was a bailee for reward of the said wooden plates and was accordingly under a duty to deliver them to the plaintiff intact.

12.
In breach of contract and/or duty, the defendant short delivered 47 wooden plates of aluminium sheets to the plaintiff.

13.
Further or alternatively, the said loss was caused by the negligence of the defendant, its servants or agents in breach of the defendant’s duty as a bailee for reward.”

When, therefore, objection was raised in limine to the jurisdiction of the Federal High Court in that the claim as framed does not come or fall within the Admiralty Jurisdiction of the Federal High Court and that the Federal High Court cannot determine the matter in exercise of its civil jurisdiction, the learned trial Judge, Kachikwu, J. (as he then was) upheld the objection. In his ruling, the learned Judge said, inter alia:”

“The claim is for breach of contract of bailment. The fact that the Nigerian Ports Authority is the defendant does not bring it within the admiralty jurisdiction of this court.

The claim has nothing to do with the revenue of the Federal Government. In the circumstances, I am of the view that the claim does not come within section 7 of the Federal High Court Act 1973. Therefore, I have no jurisdiction to entertain it. The proper order to make is one of transfer. Accordingly and in pursuance the powers conferred on me by section 22(2) of the Federal High Court Act 1973, this case is transferred to the Lagos State High Court for hearing and determination.”

Aggrieved by the Ruling, the plaintiff appealed to the Court of Appeal to reverse the order of the learned Judge and to order the case to be tried in the Federal High Court. Only two grounds were filed and they read:

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“1.
The learned Judge erred in law in ruling that a case where goods are off-loaded from a ship into the custody of the Nigerian Ports Authority and are lost by the N.P.A. does not fall within the admiralty jurisdiction of the Federal High Court.

 2.
That the learned Judge erred in transferring the case to the Lagos High Court.”

The Court of Appeal (Coram, Ademola, Mohammed and Kutigi, JJCA.) after hearing arguments and submissions of counsel for the parties dismissed the appeal. Concluding his lead judgment, Ademola, JCA. (with the concurrence of Mohammed and Kutigi, JJCA.) said:

“I find the position here to be a relationship of bailor and bailee and not contract of carriage of goods by sea.

I cannot therefore say that the broad interpretation of section 1(1)(g) of the Administration of Justice Act 1956 applied by the Supreme Court in American International Insurance Company Ltd. v. Ceekay Traders Ltd. should apply here. To do so would be saying that the Admiralty jurisdiction of the court covers everything that happens in all the ports in Nigeria, a proposition that is yet to get legislative approval. The second leg of this appeal would have to be dismissed.

The suit should have been struck out of the cause list of the Federal High Court instead of the order of transfer made.”

The Court of Appeal then made an order striking out the suit.

The plaintiff was still not satisfied and has brought the matter on appeal to this court. Two grounds of appeal were filed along with the notice of appeal and they read:

“1.
That the Court of Appeal erred in law in deciding that a case where goods are off-loaded from a ship into the custody of the Nigerian Ports Authority and are lost by the NPA does not fall within the Admiralty jurisdiction of the Federal High Court.

2.
That the Court of Appeal erred in striking out said case.”

Only the appellant filed brief in the appeal and appeared at the hearing. The respondent did not. At the hearing, neither the respondent nor learned counsel representing the respondent appeared. The court decided to hear oral argument in amplification of the brief by the learned counsel for the appellant before reserving judgment.

Learned counsel submitted, and I agree with him, that the two issues for determination revolve round the question of jurisdiction of the Federal High Court. The first issue is whether the claim filed is within the admiralty jurisdiction of the Federal High Court or not and the second issue is whether the order striking out the claim made by the Court of Appeal is justified having regard to the provision of sections 230, 231 and 233 of the 1979 Constitution of the Federal Republic of Nigeria and of section 22(2) of the Federal High Court Act and the decision of this court in Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329,333. Dealing with the first ground of appeal, learned counsel listed the four findings of the Court of Appeal in its judgment and attacked them one by one. These findings as set out in the brief read:

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“(1)
That the case of Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) 3 SC 59 was nearly on all fours with the present case;

(2)
That on the issue of jurisdiction, this matter “is less of an admiralty matter and more of the duty of care on the part of a bailee.”

(3)
That to apply a broad interpretation of section l(l)(g) of the Administration of Justice Act would be saying that the admiralty jurisdiction of the court covers everything that happens in all ports in Nigeria, a proposition that is yet to receive legislative approval.

(4)
That contract under the Bill of Lading has, in my view, terminated. The element of a contract of carriage of goods by sea in the case is no longer I find the position here to be a relationship of bailor and bailee and not a contract of goods by sea …”

It is necessary to observe that the above quotations could not strictly be described as findings of fact more especially as no evidence was taken in the Federal High Court (the Court of first instance) where the issue of jurisdiction was first considered. The Ruling of the Federal High Court and the decision of the Court of Appeal were based on the facts pleaded in the appellant’s statement of claim I have set out above. On the first finding, learned counsel submitted that the case of Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) 3 SC 59 was more in favour of his contention than against it. He distinguished it from the instant appeal pointing out that at the time that action was filed and determined in the High Court, the Federal Revenue Court, the fore-runner of the Federal High Court, had not been established. Can it be said that the finding of the trial court in that case, Obaseki, J. (as he then was) that the contract of carriage by sea terminated on the arrival of the goods at Warri port does not make the facts on all fours with the instant appeal having regard to the facts pleaded in the statement of claim and reproduced above? I certainly will say that I find similarity between the two sets of facts. The facts of the instant appeal are on all fours with those of K. Chellarams & Sons (Nig.) Ltd. case (supra).

Learned counsel for the appellant took up the second finding and submitted with respect to the second finding which was the conclusion arrived at after due consideration of the pleading, that it created a dichotomy between “pure admiralty” and “impure admiralty” cases which the law does not envisage.

        I do not think it was the intention of the Court of Appeal to create those two classes of admiralty cases. If a case is impure admiralty case, the fact that it is an admiralty case brings it within that definition and the court’s jurisdiction.

       This is therefore more of an academic discourse than the discourse of the issue before the court.

Once a matter comes partly within the jurisdiction of the Federal High Court and partly within the jurisdiction of the State High Court, there is nothing to oust the jurisdiction of the Federal High Court. The Federal High Court is entitled to assume its jurisdiction in the matter. The State High Court can also assume its jurisdiction in the matter. It should be observed, however, that the State High Court has unlimited jurisdiction. See section 236(1) of the 1979 Constitution of the Federal Republic of Nigeria.

On the decision of the court to decline that invitation of counsel to apply

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a broad interpretation of section l(1)(g) which would bring everything that happens at the ports in Nigeria within the admiralty jurisdiction of the court, learned counsel submitted that the Administration of Justice Act 1956 does not purport to lay down any proposition of law relating to ports or regarding ports. He added that where the Ports Authority is allegedly implicated in a claim for loss of goods or damage to goods carried in a ship such claim must fall within the admiralty jurisdiction. In the instant appeal, the facts pleaded drew a line separating loss of goods carried in a ship in transit and loss of goods discharged from a ship into the custody of the Nigerian Ports Authority. Discharging goods into the custody of the Nigerian Ports Authority is as good as discharging the goods into the custody of the appellant in the circumstance of this case.

On the fourth finding by the Court of Appeal:

“that contract under the Bill of Lading has terminated and that the element of a contract of carriage of goods by sea is in this case no longer there, but as between the appellant and the respondent the position is that of a bailor and a bailee.”

Learned counsel submitted that the clear implication is that the contract of carriage of goods by sea is a separate and distinct contract from a bailment. He pointed out that a carrier is a bailee of some sort. The facts pleaded, in my view, drew a thick line separating the agreement of carriage of goods by sea from the contract of bailment with the defendant.

The limit of the admiralty jurisdiction of the Federal High Court is as prescribed in the Administration of Justice Act 1956 of England. This was settled by the decision of this court in American International Insurance Company v. Ceekay Traders Limited (1981) 5 SC 81. Subsections (l)(g) and (l)(h) of section 1 read:

“(1)
The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:

(g)
any claim for loss of or damage to goods carried in a ship

(h)
any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.”

It was not the English Administration of Justice Act 1956 that conferred Admiralty Jurisdiction on the Federal High Court. It was the Federal High Court Act 1973 by section 7(l)(d) of which reads:

“The Federal High Court shall have and exercise jurisdiction in civil causes and matters.

(a)     …

(b)     …

(c)     …

(a)     of Admiralty jurisdiction.

The Federal High Court Act 1973 did not define the limit of admiralty jurisdiction but having regard to the provision of section 8(1) of the Act which deprived the High Court of a state or any other court of a state of the jurisdiction vested in the Federal High Court, the limit of the admiralty jurisdiction hitherto conferred on and exercised by a High Court of a state in this case, Lagos State automatically determines the limit of admiralty jurisdiction conferred on the Federal High Court. The provision of subsection (1) of section 8 of the Federal High Court Act reads:

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“In so far as jurisdiction is conferred upon the (Federal Revenue Court now) Federal High Court in respect of causes and matters mentioned in the foregoing provisions of this part, the High Court or any other court of a state shall, to the extent that jurisdiction is conferred upon the Federal High Court cease to have jurisdiction in relation to such causes or matters.”

Before the establishment of the Federal Revenue Court in 1973, the High Court of Lagos State exercised within its area of jurisdiction admiralty jurisdiction exercised by the High Court of Justice in England. This is expressly provided by section 10 of the High Court of Lagos Act, Cap. 80 (Revised Laws of the Federation of Nigeria and Lagos 1958 as amended). It reads:

“The High Court shall in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment possess and exercise, within the limits mentioned, and subject to the provisions of the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities, which are vested in or capable of being exercised by the High Court of Justice in England”

What is Admiralty Jurisdiction? The origin of the admiralty jurisdiction in England can be traced to ancient times. The jurisdiction of the Admiralty Court in respect of offences committed upon the high seas is rooted in ancient times.

As a result of possessing this criminal jurisdiction, the court of the Lord High Admiral began to hear disputes also in all civil matters connected with the sea and gradually usurped the jurisdiction of the common law court in matters arising in inland tidal waters, in consequence of which two statutes were passed in the reign of Richard II confining the jurisdiction of the Admirals and their deputies to things done upon the sea and in the main stream of great rivers to the seaward side of the bridge.

The civil jurisdiction of the Admiralty Court continued within the limits laid down by the statute of Richard II, but its exercise involved the Admiralty Court in a long struggle with the superior courts of common law. The Admiralty Court asserted the highest and fullest jurisdiction over everything which might happen upon the high seas, but it was obliged to give way to the common law courts and ceased to exercise jurisdiction to the full extent which it had formerly claimed. See Halsbury Laws of England Vol. 1 paragraph 301 page 208. See R. v. City of London Court Judge and Payne (1892) 1 Q.B. 273 at 292-294 CA per Lord Esher, M.R.

The Admiralty Court Act 1840 improved the practice and extended the jurisdiction of the High Court of Admiralty in England. This was followed by a series of Acts which also enlarged or defined the jurisdiction, the latest of which is the Administration of Justice Act 1956. Part 1 of that Act redefines the admiralty jurisdiction of the High Court and expressly preserve any other jurisdiction vested in the High Court of Admiralty immediately prior to the commencement of the Supreme Court of Judicature Act 1873 see section 1(1) (Administration of Justice Act 1956). Thus, the Admiralty jurisdiction of the High Court of Justice in England is derived partly from statute and partly from the inherent jurisdiction of the High Court of Admiralty. The Administration of Justice Act 1956 lists the areas of jurisdiction of the High Court under eighteen paragraphs (see section

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1(1)(a) to (s)). In addition, the High Court has any other jurisdiction which either was vested in the High Court of Admiralty before 1st November, 1875 or is conferred on the High Court as being a court with Admiralty jurisdiction by or under any Act which came into operation on or after that date, and also any other jurisdiction connected with ships or aircraft vested in the High Court which is for the time being assigned by the rules of court to Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court. Of particular interest to the consideration of this instant appeal is the jurisdiction to entertain claims for loss of or damage to cargo. The Admiralty jurisdiction of the High Court includes jurisdiction to hear and determine a claim for loss of or damage to goods earned in a ship and any claim arising out of any agreement relating to the carriage of goods in a ship or the use or hire of a ship. (See Administration of Justice Act 1956 section 1(1)(g) and (h). The jurisdiction prescribed in section l(l)(h) is wide enough to cover claims in tort arising out of any agreement relating to carnage of goods in a ship. The St. Eleftereo (1957) P. 179 (1957) 2 All ER. 374, (1957) 1 Lloyd’s Rep. 283.

At the time the High Court of Lagos Act was passed, the High Court of Justice in England exercise Admiralty Jurisdiction prescribed by the Administration of Justice Act 1956 section 7(1). See American International Insurance Company Limited v. Ceekay Traders Limited (1981) 5 SC 81 at 100 – 102.

I have set out above the provision of paragraphs (g) and (h) of subsection 1 of section 7 which I consider relevant to this appeal. Learned counsel submitted that the claim in this matter falls squarely within the provision in paragraph (h) which reads:

“Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”

The words of the paragraph are clear and unambiguous and should be given their broad ordinary meaning. By broad interpretation, I mean interpretation within the context of the section. Any interpretation that takes it out of context cannot but do violence to the meaning of the section. It cannot be sincerely argued that the facts of this instant appeal brings the claim within the provision of paragraph (h) or paragraph (g).

        The claim does not arise out of any agreement relating to carriage of goods in a ship or to the use or hire of a ship. The facts pleaded did not say so or lead to such conclusion. It cannot be the intention of the legislature that the agreement must be discharged before the claim arises. In other words, any claim which arises from acts or omission of third parties after the agreement has been executed or terminated does not come within the purview of that paragraph (h) of subsection 1. It will amount to ridiculous interpretation to say that because the goods had been carried in a ship any claim for damage or loss occurring after the completion of the journey by sea to Apapa occurring anywhere on land falls within the paragraph. In my view, the facts pleaded in the statement of claim cannot bring the claim within the provision of paragraph (g) or (h) and therefore, I agree with the decision of the court below that the claim is not within the Admiralty or other civil jurisdiction of the Federal High Court. The claim is totally devoid of any maritime colouring and founded on a simple contract of bailment and negligence. This is more so as the transaction which gave rise to the claim is in the nature of a bailment.

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A bailment is defined as a delivery of goods on condition that the recipient shall ultimately restore them to the bailor, they may thus be hired or lent or pledged or as in this case deposited for safe custody.

Paragraph 8 of the statement of claim clearly shows that 78 wooden plates of aluminium sheets were landed into defendant’s custody. Paragraph 7 of the statement of claim discloses that the plaintiff paid N24,090.67 duty on the 78 wooden plates of aluminium to the Board of Customs and Exercise based on the particulars given on the completed form Import for Home Use dated 21st May,1981. The defendant is therefore a bailee. It had custody of the 78 wooden plates at one time and according to the facts pleaded in paragraph 9 of the statement of claim the defendant stated in its letter of 10/9/81 that it should be assumed that 47 plates out of the 78 plates were illegally removed from the quay. They were not lost on board the ship “M. V. Aboine” to make the claim an admiralty matter. They were lost on the quay after they left the ship and entered the custody of the defendant. Indeed, the facts pleaded in paragraph 2 of the statement of claim to wit:

“The defendant is a statutory body with powers to take delivery of goods off-loaded from ships and to deliver them to their rightful consignees.”

completely negates the submission of learned counsel for the appellant that the claim arose out of any agreement relating to carriage of goods in a ship. The Federal High Court therefore cannot exercise admiralty jurisdiction to determine the claim.

The second issue for determination is whether if the appeal against the lower court’s decision on the question of jurisdiction fails, the proper order is one of “transfer out of the cause or matter to Lagos State High Court or striking out.”

On this issue, learned counsel submitted that the proper order is one of transfer of the suit to the Lagos State High Court and cited section 22(2) of the Federal High Court Act as his statutory authority. He also relied on the decision of this court in the case of Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329 at 333.

Learned counsel appears to be on firm ground on this issue. The Supreme Court considered the provisions of section 22(2) of the Federal Revenue Court Decree now Federal High Court Act in Mokelu’s case (supra) and said at page 433:

“We have carefully considered the wording of section 22(2) of the Federal Revenue Court Decree 1973 and we are convinced that for a true and correct meaning to be given to the word “may”it must be construed as imposing an obligatory duty. Absurdity or repugnancy would follow from holding that a discretion was given; because when a Judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. In our view, the learned Judge having rightly held that he had no jurisdiction was clearly in error when he ordered the case to be struck out contrary to the provisions of section 22(2) of the Federal Revenue Court Decree. The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of section 22(2).”

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“No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken to the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with the rules of court to be made under section 43 of this Decree.”

A similar power was given to the High Court of the States by section 22(3) of the Decree. This was before the Constitution of the Federal Republic of Nigeria 1979 came into force.

The 1979 Constitution created and established the Federal High Court.

See section 230(2). That section 230(2) reads:

“Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) relates, such court shall as from the date when this section comes into force be restyled “Federal High Court” and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law” (Italics mine)

It appears to me that the power of transfer granted by section 22(2) of the Federal High Court Act continues to reside in the Federal High Court. This is so notwithstanding sections 231(1) and 233 of the Constitution. Section 231(1) conferred all the powers of a State High Court on the Federal High Court for the purpose of exercising any jurisdiction conferred upon it by the Constitution of the Federal Republic 1979.

On practice and procedure to be followed in the Federal High Court section 233 of the 1979 Constitution provides as follows:

“The National Assembly (now Armed Forces Ruling Council) may by law make provisions with respect to the practice and procedure of the Federal High Court (including the service and execution of all civil and criminal processes of the court); and until other provisions are made by the National Assembly (Armed Forces Ruling Council) the jurisdiction hereby conferred upon the Federal High Court shall be exercised in accordance with the practice and procedure for the time being in force in relation to a High Court of a State or to any other court with like jurisdiction.” The Federal High Court which dealt with this matter in the first instance exercises its jurisdiction in Lagos State.

The question that arises in this matter is whether there is power in a State High Court, in this case, Lagos State High Court to transfer a matter which it has no jurisdiction to entertain. The clear answer is in the negative and in such cases, the order it has power to make is an order striking out the matter.

The practice and procedure of the High Court of a State is regulated by section sect section 239 of the 1979 Constitution which reads:

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“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.

By virtue of section 274 of the Constitution, the High Court of Lagos State (Civil Procedure) Rules are applicable. In particular, Order 22 rules (2) and (3) of the High Court of Lagos State (Civil Procedure) Rules read:

(2)
Any party shall be entitled to raise by his pleading any point of law and unless the court or Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

(3)
If in the opinion of the court or a Judge in chambers the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence or set off, counterclaim or reply therein, the court or Judge may thereupon dismiss the action or make such other orders therein as may be just.

However, the express provision of section 230(2) of the Constitution giving the court the powers the Federal Revenue Court had under section 22(2) and which the State High Courts have under section 22(3) of the Federal Court Revenue Decree supersede and nullify the provision of Order 22 rule 3 of the High Court of Lagos State Civil Procedure Rules in relation to the question of transfer after upholding a plea to the jurisdiction of the court. Since the Federal Revenue Court had power to transfer a matter in respect of which it had no jurisdiction to a State High Court, the Federal High Court, which is the Federal Revenue Court under a new name continues to have the power to transfer. The appeal against the order striking out the suit succeeds. The order striking ‘out the suit’ made by the Court of Appeal is hereby set aside and in its stead the order of transfer made by the Federal High Court is hereby restored.

Subject to restoration of the order of transfer the appeal is hereby dismissed and the decision of the Court of Appeal on the issue of jurisdiction affirmed.

There will be no order as to costs.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Obaseki, J.S.C. I entirely agree with the reason and conclusions therein.

There is no doubt that the Federal High Court is vested with the power to exercise admiralty jurisdiction in view of the provisions of section 7 subsection (l)(d) of the Federal Revenue Court Act, 1973; the decision of this court in American International Insurance Co. v. Ceekay Traders Ltd., (1981) 5 S.C. 81 and the provisions of section 230 subsection (2) of the 1979 Constitution, which reads:

“Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this

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section comes into force be re-styled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.

One of the questions for determination in this appeal is – whether the claim for the loss of goods shipped to Nigeria from elsewhere which occurred in the warehouse of the respondent is the subject of admiralty jurisdiction’ The extent of the admiralty jurisdiction which the Federal High Court can exercise is as provided under section 1 subsection (1) of the Administration of Justice Act, 1956 of England. (See the case of American International Insurance Company Lid. (supra) at p. 100). Now subsection (1)(g) and (h) of section 1 of the 1956 Act states –

“(1)
The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:

    (g)
any claim for loss of or damage to goods carried in a ship;

    (h)
any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.”

Mr. Mbanefo, learned counsel for the appellant, is relying on the provisions of subsection (1) (g) to contend that the claim brought in the Federal High Court by the appellant, for the loss of 47 packages of wooden plates put in the custody of the respondent, relate to the admiralty jurisdiction of the Federal High Court. This was his submission also in the Court of Appeal. However the Court of Appeal held that the contract of shipment of the packages of wooden plates terminated when the packages left the ship and as such the loss of the packages was not subject to the admiralty jurisdiction of the Federal High Court.

Learned counsel has argued, inter alia, that where the respondent is alleged to be liable to a claim for the loss of or damage to goods carried in a ship, such claim must fall within admiralty jurisdiction. He submitted that the admiralty jurisdiction ought to terminate when the goods reach the consignee’s final warehouse or place of storage. In that way action against the ship owner as well as any intermediate bailees (like the respondent) would fall under the provisions of subsection 1(g) of section 1 of the 1956 Act.

The provision of subsection 1(h) of section 1 of the 1956 Act was given its widest meaning by this court, in the case of American International Insurance Co. (supra); where it was held to include a dispute on marine insurance. It was unsuccessfully canvassed in Akinsanya v. UBA. Ltd. (1986) 4 N.W.L.R. (Pt. 35) 273 at p. 322 that this court should depart from its decision in the former case and give narrow meaning to the provision of subsection (1) (h).

As far as I know, the provision of subsection (l)(g) has not been interpreted by this court. However the dictum in The Eschershain, (1974) 3 All E.R. 307 which was followed in the case of American International Insurance Co. (supra) is, in the words of Brandon J. (as he then was) –

“I think that all the paragraphs of S. 1 (1) of the 1956 Act, including paragraph (h), should be construed in the usual way, that is to say giving the words used their ordinary and natural meaning in the context in which they appear …”

The words in section 1 subsection (l)(h) of the 1956 Act were also given wide meaning in The Jade, (1976) 1 All E.R. 920 (per Lord Diplock) and in ‘The

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    Antonis P. Lemons, (1985) 1 A.C. 711 at p. 731 where Lord Brandon said –

“… I am satisfied, on four main grounds, that the expression “arising out of should be given the second and wider meaning. The first ground is the principle, referred to earlier, that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction. The second ground is that, for the reasons given when discussing the – Gatoil case (1985) A.C. 255, I think that there is a clear indication in the arrangement and wording of article 1(1) of the Convention (i.e. the International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships, made at Brussel on 10 May, 1952) that the expression “arising out of is there used in the wider of the two meanings of which it is capable. The third ground is that, on the basis that the second ground is correct, the rearrangement and rewording of article 1(1) of the Convention contained in section 1(1) of the Act of 1956, and followed in section 20 (2) of the Act of 1981, cannot have been intended to substitute a narrow meaning for the expression “arising out of in those two subsections for the wide meaning which it clearly has in article 1(1) of the Convention. The fourth ground is that the English authorities, The St. Elefterio (1957) P. 179 and The Sennar (1981) 1 Lloyd’s Rep. 295 support the wider meaning of the expression “arising out of in section l(l)(h) of the Act of 1956 and section 20(2)(h) of the Act of 1981. The St. Elefterio as I said earlier, stood unchallenged for some 26 years until the present case, and in the interval, the legislature saw fit, in the Act of 1981, to re-enact the provisions construed in that case in the same terms as before.”

In the whole of section 1(1) of the 1956 Act, the expression “arising out of appears only in paragraphs (h), (q) and (r). It does not appear in paragraph (g) relied upon by counsel Therefore the words in the paragraph, viz. “any claim for loss of or damage to goods carried in a ship” must be given their ordinary and natural meaning. In that respect the goods concerned in a claim in the admiralty court must have been lost when they were being carried in a ship as cargo and not lost after they have been unloaded from the ship. It follows, in this case, that the packages delivered at the warehouse of the respondent were not goods being carried in a ship when they got lost. Any claim by the appellant against the respondent for the loss of the packages cannot in my opinion, be brought within the admiralty jurisdiction of the Federal High Court.

Finally, with regard to the jurisdiction of the Federal High Court to transfer the appellant’s suit to the High Court of Lagos State, there can be no doubt that the power to do so is vested in the Federal High Court by virtue of the provisions of section 22(2) of the Federal Revenue Court, 1973 and section 230(2) of the 1979 Constitution.

        Section 22(2) of the 1973 Act provides –

No cause or matter shall be struck-out by the Federal Revenue Court (now Federal High Court) merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of

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the High Court of a State in which it ought to have been brought, and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with rules of court to be made under section 43 of this Act.”

And sub-section (3) thereof, which was amended by the Federal Revenue Court (Amendment) Act, 1975, gave the same power of transfer to the High Courts of the States. It reads –

   “(3)
Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State on the ground that such cause or matter was taken in the High Court instead of the Federal Revenue Court (now Federal High Court), and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Federal Revenue Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or Law empowering the making of rules of court generally which enactment or Law shall by virtue of this subsection be deemed also to include power to make rules of court for the purpose of this subsection.”

The effect of such transfers is given in subsection (4) of section 22 as amended by the 1975 Act, which states –

“(4)
Every order of transfer made pursuant to subsection (2) or (3) of this section shall operate as a stay of proceedings before the court before which such proceedings are brought or instituted and shall not be subject to appeal.”

Now subsection (2) of section 230 of the 1979 Constitution, quoted above, has provided that the Federal High Court “shall continue to have all the powers and exercise the jurisdiction conferred upon” the Federal Revenue Court. Therefore there can be no doubt that the power of the Federal High Court to transfer cases to State High Courts, is extant and has constitutional force. The Court of Appeal was therefore in error when it held that the suit should have been struck out and not transferred to the State High Court. The appeal in this regard succeeds.

For these and the reasons given in the judgment of my learned brother Obaseki, J.S.C., I would allow the appeal in part. The order made by the Court of Appeal for costs and striking out the appellant’s suit is hereby set aside and in its place I restore the order of transfer to the High Court of Lagos State, made by Kachikwu, J.

KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Obaseki, J.S.C. in this appeal, and I agree with the reasoning therein and the conclusion that the appeal be dismissed, subject to the restoration of the order transferring the hearing of the matter to the Lagos State High Court. It is only in respect of the restoration of the order of transfer to the Lagos State High Court made by the trial Judge that I wish to make a few comments of my own in addition to the reasons given by Obaseki, J.S.C. for restoring the order of transfer in the judgment.

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        This is yet another appeal before us involving the determination of the exercise by the Federal High Court of the jurisdiction vested in it by the Constitution. On the 30th day of January, 1987, in SC 139/1985, Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping Transport Agencies Ltd. & anor. this court considered the scope of the Admiralty jurisdiction of the Federal High Court, and the general question of the jurisdiction vested in it by the Constitution of 1979. It was decided that the jurisdiction so vested by section 230 of the Constitution, cannot in view of section 236(1) of the Constitution be exercised to the exclusion of the State High Courts which are by that section invested with unlimited jurisdiction in respect of all matters. The issue now before this court is whether the Federal High Court has by the coming into force of the Constitution of 1979, and of the creation of High Courts under that Constitution lost the power of transfer of cases filed in that court, which are subsequently discovered to fall within the jurisdiction of the State High Court. It has not been disputed that the jurisdiction existed and was exercisable before the 1st October, 1979 when the new Constitution came into force. The view is that as from that date that is 1st October, 1979 the power was lost because as the Court of Appeal held, “it is not the intention of the Constitution that a court of Co-ordinate jurisdiction which the Federal High Court is to the State High Court should interfere in matters of practice and procedure of which the transfer of a case from one court to another is.”

The facts of this case have been very fully stated by Obaseki, J.S.C. in his judgment. I need not repeat them. The trial Judge Kachikwu J. of the Federal High Court having found that the matter before him did not fall within his jurisdiction, and that the claim did not also fall within section 7 of the Federal High Court Act, 1973, held that he had no jurisdiction to entertain the action. He proceeded to exercise the powers under S. 22(2) of the Federal High Court Act, 1973 as amended by Decree No. 36 of 1975 and to transfer the suit to the High Court of Lagos State which had jurisdiction, for hearing and determination.

The second question for determination before this Court and which I am concerned with is whether if the appeal failed on the issue of jurisdiction, order for transfer to the High Court of Lagos State rather than striking out the suit was the proper order. Learned counsel to the appellant had submitted relying on section 22(2) of the Federal High Court Act 1973, that the proper order to make was one of a transfer. He also cited and relied on the decision of this court in Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329 at P. 333 as his authority.

Counsel referred to the views of the Court of Appeal and submitted that they did not only conflict with the judgment of this court in Bronik Motors Ltd. v. A.C.B. Ltd. (1983) 6 SC 158 but is also a misinterpretation of the provisions of the Constitution of 1979. Counsel argued that Bronik Motors Ltd. v. ACB Ltd. (supra) held the view that the Federal High Court was enjoined by S. 230(2) of the Constitution 1979 to have such jurisdiction and exercise such powers as were vested in the Federal Revenue Court by virtue of the Federal Revenue Court Act No. 13 of 1973. In amplification of his submission, Mr. Mbanefo, of counsel for the appellants, referred to section 275(1), 277 of the Constitution of 1979 and concluded that the Constitution of 1979 did not envisage any departure from the exercise of tire jurisdiction and powers of the Federal Revenue Court, when it had been restyled the Federal High Court. Accordingly it was submitted, the powers of transfer in section 22(2) of the Federal High Court Act, was still exercisable and in force. Mr. Jibowu for the respondent who did not file his brief

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of argument did not ask for leave to dispense with the filing of briefs under Order 6 r. 10 Rules of the Supreme Court, 1985 did not reply to the above submissions.

I think it is appropriate to start with the issue of the preservation by the Constitution of 1979 of the jurisdiction and exercise of the powers of the Federal High Court. This is to enable a clear understanding of the proposition relied upon by the Court of Appeal in rejecting the exercise by the Federal High Court of the power to transfer cases to the State High Court under section 22(2) of the Federal High Court Act 1973. In the lead judgment of Adenekan Ademola JC A in this appeal in the Court of Appeal, the learned Justice referred to the cases of FCA/L/87/83 Alhaji Uthman & Ors. v. Alhaji Sule Katagum & Ors and CA/L/36/84 Chima Ocean Shipping Co. Ltd. v. Allied Trading Co. decided by the Court of Appeal, on the 16/6/83 and 10/12/ 84 respectively cited by counsel to the appellant wherein the Court of Appeal stated that neither the Federal High Court nor the State High Court had the power to transfer to the other court cases in respect of which it lacked jurisdiction and in which jurisdiction was in the other. He then went on to strike out the action from the cause list. Uthman Mohammed and I.L. Kutigi agreed. No reasons other than these were given. The reason for striking out the action in similar situation was given in Alhaji Abubakar Uthman & ors. v. Alhaji Sule Katagum (supra) where again Adenekan Ademola JCA, said;

“It is not the intention of the Constitution that a court of coordinate jurisdiction which the Federal High Court is to the State High Court should interfere in matters of practice and procedure of which the transfer of a case from one court to another is. The order of transfer here is invalid and whatever is contained in the Federal High Court Act in justification of that transfer is void and of no effect whatsoever.”

The learned Justice of Appeal indicated that he would examine the question further when the full reasons would be given for allowing the appeal. Unfortunately this was never done and the reasoning for the view remain stunted.

Nnaemeka-Agu J.C.A. was, on the same point, equally emphatic that section 22 of the Federal High Court Act 1973 was in view of the Constitution of 1979 void and of no effect. He said:

“In so far as section 22 of the F.H.C. Act as amended by Act No. 36 of 1975 is an Act of the National Assembly, which prescribed matters of Practice and Procedure for State High Court, it is unconstitutional null and void and of no effect.”

Concisely stated the opinion of the Court of Appeal in the case cited and also in this case is that section 22 was inconsistent with the Constitution of 1979, and was accordingly void. It therefore could not continue to invest Judges of the Federal High Court with the power to transfer to the High Courts of the States cases outside their jurisdiction but found to be within the jurisdiction of such State High Courts. No provision of the Constitution was relied upon for this opinion.

I think it is pertinent to refer to the short history of this enabling power and to consider whether its exercise is inconsistent with any jurisdiction exercised by State High Courts vested in them by the Constitution.

The Federal High Court had its origins in the Federal Revenue Court Decree No. 13 of 1973 (see S. 1(1) of the Federal High Court Act, No. 13 of 1973). The Federal Revenue Court, subsequently restyled Federal High Court in 1979 was established during the Military Era when the 1963 Constitution, as suspended,

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was in force. The hierarchy of superiority of laws at the time made Decrees A superior to provisions of the Constitution, and provisions of the Constitution 1963 where inconsistent with those of a Decree were to that extent void. It is thus the correct legal position that by virtue of S. 22(2) of the Act which is an exercise of the legislative powers of the Federal Military Government under S. 3(1) of Decree No.1 of 1966 the provisions of section 22(2) remained valid, and the provisions of the Constitution of the Region which included any High Court laws in force, if any, inconsistent with it, was to that extent void. See S. 3(4) of Constitution (Suspension and Modification) Decree No.l of 1966, as amended by sections 2; 3(1) of the Constitution (Suspension and Modification) Decree No. 27 of 1967.

In 1973 when the provisions of section 22(2) came into force there was no question as to its validity. It was definitely valid. This was not only because of the superiority of Decrees over Constitutions of the Regions, or laws of Regional legislatures, there was also no other legislative provisions rendering the provision inapplicable. It was within this context that the Supreme Court decided Mokelu v. Federal Commissioner for Works and Housing (supra) where Madarikan, J.S.C. stated:

“We have carefully considered the wording of section 22(2) of the Federal Revenue Court Decree 1973 and we are convinced that for a true and correct meaning to be given to the word “may” it must be construed as imposed an obligatory duty. Absurdity or repugnancy would follow from holding that a discretion was given; because where a Judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case, nor dispose of it in any other manner….The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of section 22(2)”

This was the position in 1979 when the new Constitution came into force on October 1, of that year. I now turn to look at the provisions of the Constitution of 1979 to see whether it effected any change in the jurisdiction or exercise by the Federal High Court of the jurisdiction and powers hitherto exercised by it. Mr. Mbanefo has submitted, referring to sections 230(2), 274, 275(1) and 277, of the Constitution 1979, that the Constitution effected no change. I entirely agree. The main thrust and perhaps the only reason for the view held in the Court of Appeal, was the assumption of the application of the doctrine of separation of the exercise of functions between the various Departments and Institutions of the Constitution, and that it was not conceivable that the Federal Judiciary could be intended to impose functions on a State Judiciary. No provisions of the Constitution was relied upon for this view. But on a more careful examination this was clearly not what happened.

The jurisdiction of the Federal Revenue Court, which was by section 230(2) restyled the Federal High Court, was in addition to the jurisdiction and powers exercised by the Federal High Court, to consist of

(i)
such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(ii)
in such other matters as may be prescribed as respects which the National Assembly has powers to make laws section 230(2)

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specifically provides that the Federal High Court shall

             (iii) “continue to have all the powers and exercise the jurisdiction conferred upon it by any law.”
Thus since by section 275(1), the Federal High Court was a court of law in existence immediately before the coming into force of the Constitution and was charged with functions by virtue of the Federal High Court Act, it continued to be charged with such function under that law until other provisions were made. No other provisions contrary seemed to have been made. By the provisions of section 230 (1) of the Constitution 1979, the jurisdiction hitherto exercised by the Federal Revenue Court, was incorporated into that section of the Constitution. Since section 230(2) provides that it shall

“continue to have all the powers and exercise the jurisdiction conferred on it by any law.”

It follows that the powers of transfer vested in the Court by section 22(2) of the Federal High Court Act 1973 being such law was saved by section 230(2) of the Constitution. The exercise of the power of transfer under section 22(2) is such function. It must be stressed that the powers so vested in the court is also vested by the Constitution in the State High Courts, by means of the incorporation of the power of transfer in section 22(3) of the Federal High Court Act, thus achieving bilateral exercise of the powers of transfer. I now reproduce the relevant provisions of section 22(2)(3) of the Federal High Court Act as amended by Decree No. 36 of 1975 which are as follows

S. 22(2) “No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought, and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with rules of court to be made under section 43 of this Decree.

 “(3)
Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State on the ground that such cause or matter was taken in the High Court instead of the Federal Revenue Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Federal Revenue Court or made under any enactment or Law empowering the making of rules of court generally, which enactment or Law shall by virtue of this subsection be deemed also to include power to make rules of court for the purposes of this subsection.”

These powers accordingly survive and reside in the Federal High Court and the State High Courts. Thus notwithstanding the provisions of section 231(1) and 233 of the Constitution of 1979, the Federal High Court is vested with all the powers of the High Court of a State and for this purpose the National Assembly may make provisions conferring on the Federal High Court powers additional to those conferred by section 231 as may appear necessary or desirable for enabling the court more effectively to exercise its jurisdiction. See S. 231(2) of the Constitution. Nothing can be clearer than this provision, which enables the application of section 22(2) of the Federal High Court Act 1973 as an existing

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law for transferring to State High Courts those matters within the jurisdiction of such Courts. The trial Judge properly exercised the powers vested in the court under S. 22(2) of the Federal High Court Act, 1973.

The rules of practice and procedure to be followed in the Federal High Court is as provided in section 233 of the Constitution of 1979 which is as follows –

“(233)
The National Assembly may by law make provisions with respect to the practice and procedure of the Federal High Court (including the service and execution of all civil and criminal processes of the court); and until other provisions are made by the National Assembly, the jurisdiction hereby conferred upon the Federal High Court shall be exercised in accordance with the practice and procedure for the time being in force in relation to a High Court „ of a State or to any other court with like jurisdiction.”

The trial court which exercised its powers of transfer under section 22(2) is the Federal High Court, of the Lagos Judicial Division. It can therefore properly transfer the matter to the High Court of Lagos State. The question now is whether there is power also in the High Court of Lagos State to transfer a matter in which it has no jurisdiction to the Federal High Court.

        Stricto Sensu, the answer to this hypothetical question is unnecessary because the issue does not arise since the court to exercise the power is the court which lacks jurisdiction to entertain the action, and in this case, the Federal High Court. However, the practice and procedure of the High Court of a State is regulated by section 239 of the Constitution 1979 which reads:

“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of a State.”

The High Court of Lagos (Civil Procedure) Rules are by virtue of section 274(4) (b) of the Constitution 1979 applicable as an existing law. Order 22 rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules provide:

(2)
Any party shall be entitled to raise by his pleading any point of law and unless the court or Judge in chambers or otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

(3)
If in the opinion of the court or a Judge in chambers the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence or set off, counter-claim or reply therein, the court or Judge thereupon may dismiss the action or make such other orders therein as may be just.

It seems to me that a Judge in the Lagos State High Court cannot, without relying on the provisions of section 230(2) of the Constitution, instead of dismissing an action for want of jurisdiction exercise powers under Order 22 r. 3 of the Lagos State High Court (Civil Procedure) Rules, to transfer the matter to another court. There is certainly no power to transfer the matter to the Federal High Court. But there is provision in section 230(2) of the Constitution 1979 which vested in the State High Courts the power of transfer provided in section 22(3) of the Federal High Court Act 1973 as amended by Decree No.36 of 1975. This section which is an existing law could be relied upon in such

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situations. This power is vested in the State High Court by the Constitution and not as the Court of Appeal erroneously thought by virtue of the Federal High Court Act, 1973.

In conclusion, the Federal High Court undoubtedly has the jurisdiction and power to transfer a matter before it only if it lacked jurisdiction as in this case, to a State High Court with jurisdiction. It cannot exercise the power where it has jurisdiction to hear and determine the claim before it. The Court of Appeal was therefore clearly in error in holding that the trial court lacked the power to transfer the suit to the Lagos State High Court. The appeal against the order striking out the action therefore succeeds. The order striking out the action made by the Court of Appeal is hereby set aside and in its stead the order of transfer made by the Federal High Court is hereby restored.

Subject to the order of transfer of the action to the Lagos State High Court for hearing and determination, the appeal is hereby dismissed. The decision of the Court of Appeal on the issue of jurisdiction is affirmed.

There will be no order as to costs.

KAWU, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother, Obaseki, J.S.C., which has just been delivered. I am in entire agreement with his reasoning and conclusions. I am also of the view that the appeal ought to be dismissed subject to the restoration of the order of transfer to the Lagos High Court made by the trial Judge.

        The main issue for determination in this appeal is whether the Court of Appeal was right in affirming the ruling of the Federal High Court that it had no jurisdiction to entertain the plaintiff’s claim.

The plaintiff’s writ of summons in the Federal High Court was endorsed as follows:

“The plaintiff’s claim against the defendant is for general and special damages for breach of a contract of bailment and/or breach of duty as a bailee in the custody of 47 packages of Aluminium Sheets delivered to the defendant ex M. V. River Aboine on or about the 18th day ofMay 1981, which said packages the defendant has failed to deliver to the plaintiff.

PARTICULARS

1.
C.I.F. Value of 47 packages of Aluminium Sheets N178,872.99

2.
General Damages N20,000.00 AND the plaintiff claims N198,872. 99 together with interest at 10% per annum and costs.”

The facts pleaded in the plaintiff’s statement of claim, which were nearly all denied by the defendant, are that by a Bill of Lading dated 4th May, 1981, which was issued by the Elder Dempster Lines Ltd., it was certified that 78 packages of wooden plates were consigned to the plaintiff at Apapa on M.V. “River Aboine” and that on the arrival of the vessel at Apapa, all the 78 packages were off-loaded from the vessel and delivered to the defendant. It was also averred that by a letter dated 4th June, 1981, addressed to the defendant by the plaintiff’s clearing agent – Messrs. Maritime Services Ltd., the defendant was notified that 47 packages out of the total consignment were short delivered. The plaintiff further alleged in paragraph 8 of the statement of claim that:

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“By a letter dated the 10th September 1981 the defendant informed the plaintiff that investigation revealed that 78 packages were manifested and all recorded as landed into the defendant’s custody. However only 31 packages were traced and delivered to the plaintiff. Port Police had been requested to investigate on the loss of 47 packages.”

The question is, on the facts pleaded, can it be rightly said that the plaintiff’s claim arose out of an agreement relating to the carriage of goods in a ship or to the use or hire of a ship? I do not think so. On the pleadings it would appear the loss of the 47 packages took place at the end of the voyage after all the 78 packages had been correctly delivered into the custody of the defendant. In the circumstances I am of the view that the Federal High Court was right in declining jurisdiction as the plaintiff’s claim, on the facts pleaded, did not fall within section 7 subsection (1)(d) of the Federal High Court Act 1973.

With regard to the jurisdiction of the Federal High Court to transfer the appellant’s case to the High Court of Lagos State, it is my view that the provisions of section 22(2) of the Federal Revenue Court 1973 and section 230(2) of the 1979 Constitution vested the trial court with power to do so, and Unit court correctly exercised the power. In the circumstances, the Court of Appeal was, in my view, in error to have held that the plaintiff’s case should have been struck out.

It is for these reasons and for the fuller and more comprehensive reasons given in the lead judgment of my brother, Obaseki, J.S.C. that I too would dismiss the appeal. Subject to the restoration of the order of transfer made by the trial Judge, the appeal is hereby dismissed and the decision of the Court of Appeal on the issue of jurisdiction affirmed. There will be no order as to costs.

OPUTA, J.S.C.: I have had a preview of the lead judgment just delivered by my learned brother Obaseki, J.S.C. and I am in complete agreement with his arguments and conclusions.

Two radical issues arose in and from this appeal namely:

1.
When does the admiralty jurisdiction of the Federal High Court end?

2.
Has the Federal High Court the constitutional power and competence to transfer a case to the State High Court?

It is on these two issues that I would like to add a few comments of mine. Admiralty Jurisdiction Limit of: The Federal High Court Act No. 13 of 1973 in its S. 7(l)(d) conferred “Admiralty jurisdiction” on the Federal High Court. In suit No. S.C. 39/1985, Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. decided on the 30lh day of January, 1987 (not yet reported) this Court held that the Lagos State Court and the Federal High Court both have concurrent jurisdiction in admiralty causes and matters. It does not therefore matter whether this suit originated in the State High Court rather than the Federal High Court yet still the issue as to the limit of the admiralty jurisdiction of either court will arise. It is agreed that the Admiralty jurisdiction of the High Court of England was the same jurisdiction conferred on the High Court of Lagos before the coming into force of the Federal High Court Act No. 13 of 1973 when that jurisdiction was by Sections 7 and 8 of that Act (No. 13 of 1973) conferred exclusively on the Federal Revenue Court now the Federal

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High Court. That being so the provisions of the English Administration of Justice Act, 1956 applies to the Federal High Court as well as the Lagos State High Court following this court’s decision in the Savannah Bank case supra. In The Elefterio (1957) P. 179 at p. 183, it was held that the provisions of section 1 of the Administration of Justice Act 1956 were “wide enough to cover claims whether in contract or in tort arising out of any agreement relating to the carriage of goods in a ship.”

In their particulars of claim, the plaintiff/appellant claimed general and special damages against the defendant/respondent for the breach of contract of bailment and/or breach of duty as a bailee. The statement of claim made it quite clear (in paragraphs 11 and 12) that the plaintiff’s claim sounded in contract. There was however an alternative claim in paragraphs 12 and 13 of the statement of claim alleging “that the said loss was caused by the negligence of the defendant.” Negligence is a head of tort. From the decision in The Elefterio supra, it is immaterial whether the claim was in contract or tort, a proper case will still come under the admiralty jurisdiction of the courts.

What then will be that proper case’ The jurisdiction in Courts of Admiralty in matters arising out of contract for the carriage of goods in a ship is set out in section 1 of the Act of 1956. This section defines the “Admiralty jurisdiction” of the court and particularises that jurisdiction to include:

“g.     Any claim for loss or damage to goods carried in a ship;

                h.     Any claim arising out of any agreement relating to the carriage of goods in a ship  or to the use or hire of a ship” (Italics mine)

It is to be observed that in section 1(g) and (h) above the emphasis seems to be on the expression “ship.” Mr. Mbanefo for the appellant forcefully argued both in his brief and in his oral submission before us that the expression “carried in a ship” should be given a broad and liberal construction to include from “Warehouse to warehouse” as interpreted by Belgore, J. in Interworld Enterprises Nigeria Ltd. v. Transaltic Nigeria Ltd. Suit No. FHC/L/24/84 (unreported). The difficulty with following that decision is that the learned Judge was in that case construing a Marine Insurance Policy and was therefore bound by the Law of Marine Insurance which specifically provided that:

“This insurance attaches from the time the goods leave the warehouse or the place of storage at the place named in the policy for the commencement of the transit, continues during the ordinary course of transit and terminates either on delivery:

 (a) to the consignee or other final warehouse or place of storage at the destination named in the policy or …”

It will be obviously wrong to use this rather particular and special definition of admiralty jurisdiction in a Marine Insurance case as a general guideline to determine the limit of admiralty jurisdiction in all cases. In Marine Insurance cases the duty of the court is to interprete and apply the terms and conditions of a particular Policy and not to lay down general rules binding on all other cases.

        We have a Carriage of Goods by Sea Act Cap. 29 of 1958. Section 2 of that Act refers to “Carriage of goods by sea in ships carrying goods from any port in Nigeria to any other port whether in or outside Nigeria.” The above seems to imply carriage of goods from port to port and no more. As if to further confirm this, “carriage of goods” is defined in the definition section to cover.

“the period from the time when the goods are loaded on to the time when they are discharged from the ship.”

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It is thus clear that our law generally speaking envisages carriage of goods from port to port. This is without prejudice to the terms and conditions of any Marine Insurance Policy or Bill of Lading. In other words “carried in a ship” means what it says. When therefore goods are discharged they cease to have the character and description of “goods carried in a ship.” This was the view of the Court of Appeal in this case and I think that is the correct view. The broader interpretation will ascribe to the goods a particular character and invest the courts with Admiralty jurisdiction once goods were carried in a ship. The question that will then arise will be how far does one go with such interpretation? ad infinitum? This certainly will be absurd. Lord Esher, M.R. in the Queen v. Judge of City of London Court (1892) 1 Q.B.D. 273 at p. 294 gave some handy and general guidelines for determining the scope and extent of the Admiralty jurisdiction of the High Court:

“On what does the jurisdiction of the Admiralty Court depend? It does not depend merely on the fact that something has taken place on the high seas. That it happened there is no doubt, irrespective of statute, a necessary condition for the jurisdiction of the Admiralty Court; but there is the further question, what is the subject matter of that which has happened on the high sea? It is not everything which takes place on the high seas which is within the jurisdiction of the Admiralty Court. A third consideration is with regard to whom is the jurisdiction asserted? You have to consider three things – the locality, the subject matter of complaint and the person with regard to whom the complaint is made. You must consider all these things in determining whether the Admiralty Court has jurisdiction” (Italics mine)

From the above it is apparent that the situs, the locus in quo for the assumption of Admiralty jurisdiction should normally be the high seas. Lord Esher, M.R. called it the locality. That something happened on the high seas (irrespective of any statute) is prima facie, other things being equal a necessary condition for the assumption of Admiralty jurisdiction. In the case now on appeal, the loss did not take place “on the high seas.” The ship M.V. “River Aboine” had docked at the Apapa port and the goods had been fully discharged into the warehouse of the defendant/respondent. It was from that warehouse that 47 packages were lost. Thus the “locality” (the high seas) principle propounded by Lord Esher, M.R. in Queen v. City of London Court supra does not extend to this case. I do not agree with Mr. Mbanefo’s contention that any interpretation broader than that in section 2 of Cap. 29 of 1958 or the definition of “Carriage of Goods” contained in the “Definitions” in Article 1 of the Schedule to Cap 29 need be applied to the facts of this case. Ground 1 of the grounds of appeal filed by the appellant therefore fails.

Ground 2 complained:

“2.
That the Court of Appeal erred in striking out the said case.”

On the above issue (transfer or striking out) the trial Court ruled as follows:

“I am of the view that the claim does not come within S. 7 of the Federal High Court Act 1973. Therefore I have no jurisdiction to entertain it. The proper Order to make is one of transfer. Accordingly and in pursuance of the powers conferred on me by section 22(2) of the Federal High Court Act 1973, this case is transferred to the Lagos State High Court for hearing and determination.”

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Incidentally Mr. Mbanefo appealed against the above decision of the Federal High Court transferring the case to the Lagos High Court. In the Court of Appeal his complaint was that the learned trial Judge Kachikwu, J. (as he then was) “was wrong in transferring the case to the Lagos State High Court.” Mr. Mbanefo relied on two decisions of the Court of Appeal namely:

      1.
Alhaji Uthman & Ors. v. Alhaji Sule Katagum & Ors (1985) 6 N.C.L.R.138

      2.
China Ocean Shipping Co. Ltd. v. Allied Trading Co. – CA/L/36/84 of 10/12/84 (unreported).

The Court of Appeal agreed with Mr. Mbanefo following obviously their two decisions cited above and held:

“The power to transfer, exercised in the suit from which this appeal has come is therefore void and of no effect.”

Mr. Mbanefo won on this ground but lost on the other ground dealing with the jurisdiction of the Federal High Court to entertain the suit. The net result was that his appeal to the Court of Appeal was dismissed and the case “was struck out of the cause list of the Federal High Court.”

Apparently aggrieved by the above decision, Mr. Mbanefo has now finally appealed to this Court on two grounds, one dealing with jurisdiction, the other with the competence of the Federal High Court to order a transfer of a case improperly filed before it to the Lagos State High Court. I have dealt earlier on with the issue of the limit of the Admiralty jurisdiction of the courts. Now I will deal with the order, of transfer.

The learned trial Judge made his Order of transfer in pursuant of the powers conferred on the court by S.22(2) of the Federal High Court Act 1973. That Section stipulates:

“22(2)
No cause or matter shall be struck out by the Federal Revenue Court (now the Federal High Court) merely on the ground that such cause or matter was taken in the Federal High Court instead of the High Court of a State in which it ought to have been brought, and the Judge of the Federal High Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with rules of court to be made under section 43 of this Act.” (Italics mine).

The Court of Appeal in one or two cases considered the power, the jurisdiction and the competence of the Federal High Court holding in one breath that a particular cause or matter is outside its jurisdiction and in another breath transferring the same cause or matter to the State Court. In Alhaji Abubarkar Uthman & ors. v. Alhaji Sule Katagum &Ors supra Ademola J.C.A. observed and inter alia held at p. 139:

“On the authority of the Bronik case, there is no doubt that the Federal High Court has no jurisdiction to adjudicate on the claim before it … If that court lacks jurisdiction, it means and it must mean that the totality of the claim before it cannot be adjudicated upon. The acceptance of that submission must in my view leave him with no other alternative than to strike out the claim in toto. There is no power in him to order transfer … But it is said that S. 22, S. 22(4) of the Federal High Court Act both of 1973 and 1975 being existing provisions of an existing Act save what the Learned

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Chief Judge has done. I have my doubts … It is not the intention of the Constitution that a court of co-ordinate jurisdiction which the Federal High Court is to the State High Court should interfere in matters of practice and procedure of which the transfer of a case from one court to another is. The Order of transfer here is invalid and whatever is contained in the Federal High Court Act in justification of that transfer is void and of no effect whatsoever.

Logically if a court has no jurisdiction to hear a case, it should not as well have jurisdiction to make an order of transfer. That may be logic. But the law is not always logical especially when it comes to interpreting clear and express words of a Statute. Also a court may not have jurisdiction to determine a cause or matter but it may, that notwithstanding, have jurisdiction to say that it has no such jurisdiction. It is the law that vests jurisdiction in a court (barring inherent jurisdiction that is). And if section 22(2) of the Federal High Court Act, No. 13 of 1973 invested the Federal High Court with jurisdiction to transfer a case improperly filed before it to the State High Court, it will need very strong and very substantial argument to divest that Court of a jurisdiction expressly conferred on it by Statute. If the argument is that section 22(2) of the Federal High Court Act 1973 is inconsistent with any section of the 1979 Constitution and thereby void for such inconsistency, the court below should have mentioned the exact Section of the Constitution infringed. Ademola, J.C.A. mentioned none. It is therefore difficult to explain or defend his theory of the “invalidity” and the “ineffectiveness” of the transfer.

Nnaemeka-Agu, J.C.A. in his concurring judgment in the same case Uthman v. Katagum supra went a step further. He contended at p. 140:

“Although S. 22(2) and S. 22(4) of F.H.C. Act No. 13 of 1973 as amended by No. 36 of 1975 take effect as existing laws under S. 274 of the Constitution, they must be read along with other sections of the Constitution. Section 4 delimits areas of legislative power between the National Assembly and the State Assemblies. By the joint effect of section 4 and section 239 of the Constitution it is for a State Assembly to make provisions for practice and procedure of State High Court. Matter relating to commencement and transfer of cases are among those matters of practice and procedure. In so far as S. 22 of the F.H.C. Act as amended by Act No. 36 of 1975 is an Act of the National Assembly which prescribes matters of practice and procedure for State High Courts, it is unconstitutional null and void and of no effect.

I am therefore of the view that the action of the Learned Chief Judge of the Federal High Court in transferring the case pending before him but which he has conceded he has no jurisdiction to hear is invalid.”

The above is the view of Nnaemeka-Agu, J.C.A. on the competence of Judges of the Federal High Court to transfer cases to the State High Courts.

With the greatest respect for the opinions of these two very eminent Justices of the Court of Appeal, Lagos Division, there seems to be a radical flaw in their arguments. On a proper construction of section 22(2) of the Federal High Court Act, No. 13 of 1973, the following facts appear in bold relief:

1.
That a case was in fact improperly filed in the Federal High Court.

2.
That accordingly the Federal High Court has no jurisdiction to try that case.

3.
That the State High Court should have been the forum competens.

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4.
That notwithstanding such radical error in filing the case in the wrong court yet still the case shall not be struck out on that ground.

5.
That instead of striking out the case the Judge of the Federal High Court before whom the case is brought, (I may even say improperly brought) shall have the power and legal authority and judicial competence to transfer that case to the appropriate High Court.

This court in Chief P. I. Mokelu v. Federal Commissioner for Works & Housing (1976) 1 N.M.L.R. 329 considered S. 22(2) and the vexed issue of transfers from the Federal High Court to the Stale High Court and held at p. 333:

“In our view, the learned trial Judge having rightly held that he had no jurisdiction was clearly in error when he ordered that the case be struck out as this is contrary to the provisions of section 22(2) of the Federal Revenue Court Decree. The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of Section 22(2)”.

I am not aware that Mokelu’s case supra has been over-ruled by this court. It is therefore binding on the Court of Appeal. I am sure that if Mokelu’s case supra was referred or cited to the Court of Appeal when it heard the case of Uthman v. Katagm supra its decision would certainly have been to uphold the transfer.

Also by section 231(1) of the 1979 Constitution “for the purpose of exercising any jurisdiction conferred upon it by this Constitution … the Federal High Court shall have all the powers of the High Court of a State” (here Lagos State). If therefore a High Court of Lagos State can rightly transfer a case pending before it to another High Court of Lagos State; then the Federal High Court by section 231(1) above can also transfer a case pending before it to a High Court of Lagos State. Again the jurisdiction envisaged by section 231(1) of the 1979 Constitution includes the jurisdiction conferred on the Federal High Court by section 230(l)(a) which by the operation of section 274 of the Constitution incorporates the jurisdiction conferred by Act, No. 13 of 1973 including its section 22(2). By express words and by constitutional provisions, the Federal High Court was given the legal authority and judicial competence to transfer cases pending before it, albeit, improperly to a State High Court.

For all the reasons given above, and for the fuller reasons in the lead judgment of my learned brother Obaseki, J.S.C. with which I am in full agreement, and which I now adopt as mine, I will allow this appeal in part – (on ground 2) – set aside the Order of the court below and restore the Order of the court of first instance transferring the case to the Lagos State High Court. I will abide by all the other consequential Orders made in the lead judgment.

Appeal dismissed in part

Case transferred to

High Court of Lagos State

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